Off the Clock

Is a Spanish attempt to hold China accountable for abuses in Tibet the end of the global policeman?

China is battling international law, and it looks poised to win a big victory. The focus is not the contested waters of the East China Sea, but Tibet -- and this latest legal drama is unfolding in the courtrooms and parliament of Spain. 

For almost two decades, Spanish judges in the Audiencia Nacional, a special judicial body with national and international reach, have employed a "universal jurisdiction" law to investigate allegations of far-flung abuses, including some by senior officials from Rwanda, Argentina, Israel, and the United States. Some of the cases have had little connection to Spain or Spanish citizens. That doesn't matter, the judges have insisted: The Spanish law -- and the broader concept of universal jurisdiction -- make clear that any national legal system can prosecute egregious crimes anywhere in the world. 

These investigations, including the famous case launched in 1998 against former Chilean strongman Augusto Pinochet, have rankled some Spanish politicians, who bear the diplomatic costs of the country's judicial forays. A spokesman for Partido Popular, the ruling party, fretted that these cases only produce "diplomatic conflicts," and former president Jose Maria Aznar lamented what he called Spain's desire to be a "universal policeman." The prosecutions have been controversial within the Spanish judiciary as well. In early 2012, Spain's Supreme Court suspended judge Baltasar Garzon, who led the Pinochet investigation. The court found that Garzon had abused his powers during a later investigation, effectively ending his judicial career. Many observers interpreted the action against Garzon as evidence that some senior judges were displeased with his headline-grabbing, globe-spanning enquiries.

But with the underlying law intact, the universal jurisdiction cases have continued even with Garzon sidelined. On Monday Feb. 10, a Spanish judge issued a detention order for former Chinese President Jiang Zemin, former Premier Li Peng, and several other officials. They stand accused of authorizing repression and abuses in Tibet. The judge said that both men had authority over officials who ordered torture and other crimes in the restive region.

China was annoyed -- and did not hesitate to publicly voice its concerns on the health of the bilateral relationship between the two countries. "Whether or not this issue can be appropriately dealt with is related to the healthy development of ties," said China's Foreign Ministry spokesperson. "We hope the Spanish government can distinguish right from wrong."

Madrid can certainly hear what China is saying. Spanish leaders have made expanding trade with China a priority as they struggle to lift the country's foundering economy. No doubt with this in mind, the conservative Partido Popular has introduced legislation that would require investigations to have some link to Spain. The draft measure would require that suspects in such investigations either be Spanish nationals or, at the very least, be on Spanish soil. Human rights groups have warned that the law would constitute "a devastating blow to Spain's commitment to ensuring accountability for the worst crimes."

Activists involved in the Tibet case accuse Spanish legislators of knuckling under to Chinese pressure. "Until now Spain has had a reputation for strong judges, like the United States and Germany don't have," Tibet-born activist Thubten Wangchen told Spain's El Pais. "From now on, Spain is going to lose its international reputation for defending human rights. And it's going to exchange it for money." University of London law professor Kevin Jon Heller also worries about the dynamic of economic clout trumping justice. "The change to the law seems overtly motivated by Spain's desire to avoid alienating China, with whom it has increasingly important economic ties."

Spain isn't the first country to reconsider the wisdom of universal jurisdiction legislation under pressure from powerful capitals. In 2003, U.S. officials intervened with Belgian authorities after its courts began an enquiry into possible U.S. crimes during the Iraq War. The Belgian investigation convinced U.S. Secretary of Defense Donald Rumsfeld that universal jurisdiction laws posed a direct threat to U.S. interests. "It is only a matter of time before there is an attempted prosecution of a U.S. official," he wrote in a memo to other Bush administration officials. He warned Belgium that NATO might have to move its headquarters from Brussels unless the law was changed. Soon after, Belgium agreed. 

With Spain now on a similar path to accommodation, universal jurisdiction may lose its champions. Spain's judges have been pioneers in prosecuting abuses across borders, and a retreat by Madrid would reverberate elsewhere. Prosecutions actually based on universal jurisdiction are already unusual (although exactly how rare is a matter of some debate). One study concluded that there have been only a few dozen genuine universal jurisdiction prosecutions since World War II.

The scarcity of universal jurisdiction cases reflects the fact that most national legal systems don't have the resources or inclination to prosecute cases not connected to their territory or citizens. The advent of the International Criminal Court (ICC), which began operations in 2002, means that a permanent court now stands ready to prosecute the grave crimes that universal jurisdiction prosecutions have sought to reach. Given its work, even national legislators and judges with roving eyes may decide that crimes in foreign lands should be left to their counterparts in The Hague. 

That's not a satisfactory answer to those who insist on universal justice. While the ICC could, in theory, investigate Chinese abuses in Tibet (or, for that matter, American excesses in its war on terror), doing so would almost certainly require the acquiescence of the UN Security Council, where both countries have the veto power. The world is a long way from a justice system that can reach the weak and the strong, and Spain's coming change of course will make that distance even greater. 

ROBYN BECK / AFP / Getty Images


Warning: Winter Metaphor Alert!

How a foot of snow explains everything that's wrong with Washington, D.C. … and the world.

I was going to write this week about civil-military relations, but when I emailed my editor to let him know, he had something else in mind: "Sounds good," he responded politely. "But I was hoping you would write about the snow."

The snow?

Fair enough. No one here in what we used to call the "Capital of the Free World" is interested in civil-military relations, because we're all too busy thinking about snow.

Yesterday's weather forecast -- repeated with growing frenzy throughout the day by every news outlet in the region -- warned that over the next 12 to 24 hours it would snow, although it was always possible, of course, that it wouldn't snow. But if it snowed, the meteorologists assured us, it would probably snow a lot, or a little, or some amount in between. Then, at some point during the morning, afternoon, or evening, the snow, if any, might or might not turn partially, or completely, to rain, freezing rain, sleet, hail, sheet ice, or a plague of locusts.

Surely this is fodder for a column on foreign policy. Right?

Sure. First rule of opinion journalism: Find a metaphor, and be it ever so forced, clumsy, or idiotic, run like hell with it!

We can do that here at Foreign Policy, boys and girls. Read it and weep:

Here we are, in the capital city of the most powerful state on Earth, and yet we're paralyzed by uncertainty. We have the best weather forecasting models money can buy, the most hysterical weather reporters early 21st-century journalism is capable of producing, and an army of snow plows poised to deploy, but we still don't know what's going to happen tomorrow. And aside from the largely ritualistic purchases of flashlight batteries, most of us don't have a clue about what, if anything, we should be doing to prepare.

The dismayingly vague weather forecast is -- obviously! -- a metaphor for the emerging global security environment, about which we are similarly uncertain and similarly confused.

(Please, hold the applause. These metaphors just come to me. I'm gifted like that.)

What, you don't get it? For weather forecasting models, substitute National Intelligence Estimates. For hysterical weather reporters, substitute equally shrill politicians. For armies of snowplows, substitute the mighty U.S. military.

Having established a dubious link to the snow -- much of which did indeed fall -- we can now proceed to the argument.

The outlook for the global security environment is uncertain, and we are confused and scared. My metaphor unfortunately starts to break down here, for when it comes to snowstorms in Washington, we're much more scared than we should be: The panicky shoppers at my local Whole Foods looked like they were preparing for something akin to the Siege of Stalingrad. When it comes to the global security environment, however, we're not nearly as scared as we ought to be.

So here's my message from the heart of the whirling storm: Be afraid. Be a whole lot more afraid than you are now.

But don't fear the things you usually fear: the serial killer who might be at large in the neighborhood or even the suicide bomber who might hit the local mall. The media and the shriller politicians love that stuff, though in the grand scheme of things, those threats pale in comparison to the threats we usually don't think about.

That's not because we haven't been told to be scared. On the contrary, we've so often heard that we live in a complex, dangerous, and uncertain world that we tune it out. We nod -- we may even sagely repeat such phrases ourselves at cocktail parties or when called upon to deliver pompous conference remarks -- and we tell ourselves we get it. But we don't feel it in our bones.

We should. Get past the sound bites and the justifiable worries about political threat inflation, and be frightened.

Let me try to breathe some life into the clichés.

The world has grown more complex. Believe it. The world now contains more people living in more states than ever before, and we're all more interconnected. A hundred years ago, the world population was about 1.8 billion, there were roughly 60 sovereign states in the world, the automobile was still a rarity, and there were no commercial passenger flights and no transcontinental telephone service. Fifty years ago, global population had climbed to more than 3 billion and there were 115 U.N. member states, but air travel was still for the wealthy and the personal computer still lay two decades in the future.

Today? We've got 7 billion people living in 192 U.N. member states and a handful of other territories. These 7 billion people take 93,000 commercial flights a day from 9,000 airports, drive 1 billion cars, and carry 7 billion mobile phones around with them -- phones they can use to monitor their heart rate, purchase stocks, post restaurant reviews, share family photos, create how-to videos for aspiring suicide bombers, watch the news, or even check the weather forecast in Washington, D.C. (for all the good that will do them).

This means we're more interconnected. A hundred years ago, human activity inside the borders of one state could have little direct or immediate effect on people living in other states. Today, that's no longer true. A collapse in one state's stock market can trigger rapid meltdowns in other markets, destructive computer viruses can spread in hours or days, and carbon emissions in the United States and China can change sea levels in the Netherlands -- or cause increasingly severe and unpredictable weather around the globe. (Have I mentioned that we're getting some weather here?)

The world has grown more dangerous. To devotees of Steven Pinker, this may seem like a baffling claim. After all, in many respects, the last century has seen enormous advances in human health, prosperity, and security. You, reader, face pretty good odds of living a long and safe life, given FP's current reader demographics. But with respect to species survival, the world has grown more dangerous. Notwithstanding recent increases in life expectancy and reductions in violent conflict, humans now possess the unprecedented ability to destroy large chunks of the human race, and possibly the Earth itself.

In 1945, the development and use of the atom bomb opened the door to global cataclysm. Today, there are an estimated 17,000 nuclear warheads in the possession of some nine states -- and though the near-term threat of interstate nuclear conflict has greatly diminished since the end of the Cold War, nuclear material is now less controlled and less controllable. And nukes aren't the only thing that might plausibly keep us up at night. If you want to give yourself a good scare, do some bedtime reading on bioengineered threats or even the various possible lethal epidemics that might start without help from malign human actors and then spread around the world in weeks, thanks to modern travel technologies. Then there's climate change, which could submerge coastal cities, cause drought and famine, fuel civil global conflict -- and give my kids a truly frightening number of snow days.

Our world is more uncertain. Still skeptical? Maybe you're thinking, "OK, global catastrophe could happen, but surely it's not very likely?" But as our world has grown more complex, interconnected, and dangerous, the future has grown correspondingly more uncertain. We have more information than ever before and greater processing power -- but the pace of global change has far exceeded our collective ability to understand it, much less manage it.

For most of human history, major technological and social transformations occurred over thousands of years. The Paleolithic period (or "Old Stone Age") is presumed to have lasted for a couple of million years, give or take; the Mesolithic and Neolithic eras got a 5,000 to 10,000 year run; the Bronze Age and the Iron Age each took a few thousand years. In Europe, things sped up during the Renaissance and the age of exploration. Enter the Industrial Revolution, and the pace of change accelerates some more; today, in the age of Moore's Law, it's downright dizzying.

For the average European peasant, life in the year 300 wasn't all that different from life in 800 or 1300 or 1700: Life revolved around hunting, fishing, or farming; the manufacture of goods was on a small scale; travel was by foot, horse, or ship. Most Americans living in 1900 would have had more daily experiences in common with Americans living in 1800 -- or 1700, for that matter -- than with Americans living today.

Here's what this means: We literally have no points of comparison for understanding the scale and scope of the risks faced by humanity today. Compared to the long, slow sweep of human history, the events of the last century have taken place in the blink of an eye. This should temper any pride we feel in recent "achievements" and give us pause when we're tempted to conclude that today's trends are likely to continue. Rising life expectancy? That's great, but if climate change has consequences as nasty as some predict, a century of rising life expectancy could turn out to be a mere blip on the charts. A steep decline in interstate conflicts? Fantastic, but less than 70 years of human history isn't much to go on. No nuclear annihilation so far? Whew -- but what on Earth would make you assume we've "solved" that problem, rather than just had a run of mostly unmerited good luck?

That's why one can't dismiss the risk of catastrophic events as "high consequence, low probability." How do we compute the probability of catastrophic events of a type that has never happened? Does 70 years without nuclear annihilation tell us that there's a low probability of nuclear catastrophe -- or just tell us that we haven't had a nuclear catastrophe yet?

Even when we have oodles of data going back over a long period of time, most of us aren't very good at evaluating risk. We tend to assume that the way things are is the way things are likely to remain. The mountain that has been there for thousands of years will probably be there for another hundred. But we forget that the same logic doesn't hold for everything. We say, "That tree in the backyard has survived snow and ice storms for a hundred years -- it's not going to fall down tomorrow!" But when it comes to trees, having survived for a hundred years generally means there's now more, rather than less, chance of collapse tomorrow.

Lack of catastrophic change might signify a system in stable equilibrium, but sometimes -- as with earthquakes -- pressure may be building up over time, undetected. Often, the problem is that we just don't know enough: If you just planted a new tree in the backyard from a breed that's never before been planted outside the tropics, it's hard to know how it will fare in snow. If you're a scientist studying earthquakes, tornados, or tsunamis, it's one thing to understand the conditions under which they form, but we still have little ability to predict their precise time and locations sufficiently in advance to do any good. Is global stability more like a mountain, more like a tsunami, or more like a tree? And if it's a tree, is it the kind we're used to or a whole new kind of tree?

Most international security "experts" have about as much ability to predict the future as you or I would have to predict the weather just by looking out the window. And the events of recent decades should undermine everyone's confidence in our collective ability to predict geopolitical change. Most analysts assumed the Soviet Union was stable -- until it collapsed. Analysts predicted that Egypt's Hosni Mubarak would retain his firm grip on power -- until he was ousted. How much of what we currently file under "Stable" should be recategorized under "Hasn't Collapsed Yet"?

Try to feel the danger and uncertainty in your bones -- not because it will build character, but because feeling afraid is the only thing likely to jolt us into action. Wouldn't it be better to try to actively manage the global risks we face, instead of muddling through and relying on sheer dumb luck? Right now, U.S. foreign policy is nine parts response and retaliation and only one part prevention and resilience-building. Taking the risk of catastrophe seriously would have serious implications for how we think about budgets, research agendas, and governance, among other things.

But this column is getting long, so I'll save the rest for the next snow day. Right now, I have to go out and shake some trees -- they're covered with snow and ice, and I don't want them to fall down on top of my car.

Mark Wilson/Getty Images